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From the NPA with fear, favour – and prejudice


Pierre de Vos teaches Constitutional law at the University of Cape Town Law Faculty, where he is head of the Department of Public Law. He writes a blog, entitled 'Constitutionally Speaking', in which he attempts to mix one part righteous anger, one part cold legal reasoning and one part irreverence to help keep South Africans informed about Constitutional and other legal developments related to the democracy.

The National Prosecuting Authority may have driven the final nail into the coffin of its credibility with the way it handled the Marikana massacre, but the writing was on the wall years ago already.

What is wrong with the National Prosecuting Authority (NPA)? It should be a trusted institution in our democracy; one in which people of the highest integrity and with impeccable legal knowledge make prosecutorial decisions in the most impartial and honest way possible, guided only by the law and the Constitution. But it seems to have been captured by a faction of the governing party.

Members of the NPA are bound by section 175(9) of the Constitution to act in accordance with the prosecution policy agreed to by the National Director of Public Prosecutions (NDPP) and the Minister of Justice, and cannot make decisions in contravention of this policy. Neither can they make decisions that favour individual well-connected politicians, the governing party, business elites, or the police as they are enjoined by section 179(4) and provisions of the NPA Act to exercise its functions without fear, favour or prejudice. 

This means members of the NPA are not permitted to be guided by a seemingly irrational fear or animosity towards protestors or striking workers – even if these protestors and strikers have been seen carrying traditional weapons and even if they are much loathed and feared by the chattering classes with large property or investment portfolios. The members of the NPA are furthermore not allowed to take instructions from any politician or from any rich businessman or large multinational company on who to prosecute for which particular crimes.  

It is true that in terms of section 179(6) of the Constitution, the minister of justice has a duty to exercise final responsibility for the NPA, and the NPA Act empowers him to request the NPA to furnish him with all information about any case in order to do so. However, as the SCA confirmed in one of the many Zuma judgments, the minister cannot interfere in the day-to-day running of the NPA and neither can the president. If they do, they commit a crime in terms of the NPA Act and can be sent to jail.

But these formal safeguards contained in the Constitution and the NPA Act – and which is aimed at protecting the NPA from political capture by elements in the governing party, or from capture by private business interests – have not protected the NPA from ignominy. In the wake of the NPA’s recent decision to charge 270 miners with murder for the killing of 34 of their comrades and, then secondly, bizarrely to drop the charges – all while insisting on the legal soundness of the original decision – the NPA’s credibility is in tatters.

But although the NPA has now arguably reached a new low point, the rot started setting in a very long time ago. Remember the inexplicable and legally indefensible decision by then-NDPP Bulelani Ngcuka not to charge Jacob Zuma despite announcing that there was a prima facie case against him for fraud and corruption? Remember the decision by Vusi Pikoli to reinstate the charges when Zuma’s political star was not extinguished, despite (or maybe because of) his being fired as deputy president? 

Remember the even more bizarre decision of the NPA to drop the charges against Zuma a few days before the national election on the basis of a plagiarised and later overturned Hong Kong Court judgment and without even mentioning the prosecuting policy in terms of which such decisions were supposed to have been taken? Remember the firing of Vusi Pikoli on spurious grounds and the appointment of Menzi Simelane as new NDPP, despite the fact that the latter had an adventurous relationship with the truth, having previously been found to have misled not only our courts but also a formal inquiry appointed by the president? Remember the mysterious dropping of charges of fraud and corruption against ANC high flyers, KZN Speaker Peggy Nkonyeni and provincial finance MEC Mike Mabuyakhulu, who had allegedly solicited bribes from a businessman on behalf of the ANC? Remember the suspension of Glynnis Breytenbach and the decision by the NPA to drop various charges against Richard Mdluli?

For political scientists who study the pathologies associated with one-party dominant democracies, this systematic hollowing out of the NPA and its seemingly increasing partisan behaviour in support or protection of a particular faction within the governing party, would come as no surprise. Nor would the recent moves to re-militarise our police and its increasingly high-handed actions in defence of the political and business interests of those aligned to the governing party.

Studies focusing on countries as diverse as Mexico, Italy, Japan and India, where one political party at one time or another dominated the electoral landscape for a considerable time, identify the political capture of important institutions (like the judiciary; the police and intelligence services; the prosecuting authority; the state broadcaster; bodies representing the interests of the upper-middle class professions) as one of the effects of one party dominance. 

Such studies demonstrate how overwhelming and sustained success at the polls often translates into political influence over supposedly independent and impartial state institutions and how such “capture” of institutions can protect a dominant political party and its leaders from the consequences of the ever-more rapacious behaviour of its leaders. It also demonstrates how the long-term electoral dominance of a political party and the subsequent capture by the party of state institutions can help to protect the greedy members of the business elite who will ingratiate themselves with party leaders to secure their own protection and the protection of their business interests by the law enforcement arms of the state. 

A politicised and captured police force can act as a quasi-paramilitary force to protect the elites from the restless and angry sections of the population. A politicised and captured prosecuting authority can protect the political and business elites from prosecution for corruption and will ensure the continued flow of money into the coffers of the party as it will provide those who donate generously to the party leaders or the party election efforts with immunity from prosecution for fraud and corruption.

The appointment by President Jacob Zuma of Menzi Simelane as head of the NPA and of Bheki Cele as head of the South African Police Service, and the subsequent souring of relations between Zuma and these gentlemen (which led to the removal of Cele and the suspension of Simelane), must be seen against this background.

These moves become even more significant when one recalls that where dominant political parties are not united and where various factions within the dominant party vie for dominance of the party, state institutions – including the intelligence services, the police, the so called independent corruption fighting bodies and the prosecuting authority – might well be deployed by the dominant faction against those inside the party who are perceived to have dared to challenge the dominance of the ascending faction or who had gotten too greedy for money or power. 

This often leads to instability within the otherwise smoothly operating system in which the politicians and business elites are able to extract the maximum amount of wealth from the economy without fear of being exposed or thwarted. When this happens, the dominance of the elites may be challenged as it may well expose the abuse of state institution and resources and may lead to disillusionment among voters – even those bombarded with the propaganda in support of the dominant faction in the state-controlled media. When a majority of ordinary voters lose faith in the dominant elites and the institutions which they control, the state can either increase repression to retain control, or they can embark on reform and risk losing subsequent elections.

Has South Africa tipped over into a one-party dominant democracy and does it display some of the pathologies mentioned above? Do the increasingly bizarre goings on in the NPA and increasing distrust with which decisions from that body are viewed represent a dangerous threat to the continued legitimacy of the ANC as the only true representative of the oppressed in South Africa? Does it threaten the electoral dominance of the ANC and the dominant faction within it? 

Will it force the hand of the securocrats within the majority party and strengthen the hand of the reformers, or will the tight grip the latter group has on institutions like the NPA allow them to snuff out any dissent from both the populists and the reformers? To what extent will the dominant group inside the governing party be willing to use the increasingly militarised police force, the highly partisan intelligence service and the seemingly captured prosecuting authority to go after its opponents inside and outside the ANC?

We might be about to find out – if a report in the Mail & Guardian is true that the Hawks are ready to charge Julius Malema with fraud and corruption. I would guess (but it is no more than a guess) that Malema’s challenge to the dominant group will easily be snuffed out with the strategic use of the criminal justice process. Zuma’s faction has a firm grip on all the institutions that could ensure this to happen, while there is little sympathy for Malema amongst members of the political and business elite, among the chattering classes and among members of the media. Unlike Zuma, he will also not be able to rely on the machinery within the ANC to fight back. 

But the question remains whether the NPA will recover some credibility in the eyes of voters and whether a critical mass of citizens will believe that it is acting without fear, favour or prejudice the next time it charges an opponent of Jacob Zuma or drops charges against a political ally or business accomplice of anybody in the Zuma camp. DM


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